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of April following the said ships, in support of the Malietoa party, frequently proceeded to bombard the rear of Apia as well as various other localities on the island of Upolu and to destroy villages by landing parties, assisted therein from the 24th of March by H. B. M. ship Tauranga, that from the said 15th of March up to the said 25th of April frequent expeditions into the interior took place by combined forces of sailors and marines from the ships of war and natives of the Malietoa party, commanded by officers from the ships, for the purpose of fighting the Mataafans, or in order to procure food; and that in Apia a severe control of the street traffic was established by the British and American military authorities through the posting of sentries with orders to allow only bearers of passports issued by said authorities to pass;

Whereas with respect to the contention of the British and United States Governments that, under the terms of the general act signed at Berlin the 14th of June, 1889, any one of the signatory powers was fully authorized to enforce by every means the decision of the 31st of December, 1898, of the chief justice of Samoa, declaring Malietoa Tanumafili King of Samoa, which decision had been rejected by the Mataafa party, and that therefore the military action, if taken for that purpose, was not unwarranted-we have found nothing in the said general act, or any subsequent agreement, which authorizes one of the signatory powers, or a majority of them, to take action to enforce the provisions of the act or the decisions of the chief justice binding on the powers.

Whereas, on the contrary, by Art. I of the general act it is expressly provided that "neither of the powers shall exercise any separate control over the islands or the government thereof," and, taking into consideration the nature and extent of the operations at the time aforesaid conducted in Samoa by the British and American military authorities, the military action in question undoubtedly had the character of a serious control over the Samoan Islands and the government thereof; and

Whereas, moreover, the protocols of the Berlin conference clearly show that in framing the general act the plenipotentiaries of the powers wished to establish the principle that in their dealings with Samoa the powers only could proceed by common accord, and as this very principle has been sanctioned by the powers not only in subsequent agreements supplementary to the general act made between them in 1892 and 1896, by which it was agreed that under certain circumstances their ships of war might be used to support the supreme court of Samoa and ammunition served out to the Samoan government, though in both cases only with the unanimous consent of the representatives of the powers, but also in the instructions issued for the joint commission sent to Samoa in 1899, the actions of which should be valid only if acceded to by all three commissioners;

Whereas, furthermore, by proclamation issued on the 4th of January, 1899, the consular representatives of the treaty powers in Samoa, owing to the then disturbed state of affairs and to the urgent necessity to establish a strong provisional government, recognized the Mataafa party, represented by the High Chief Mataafa and thirteeen of his chiefs, to be the provisional government of Samoa pending instructions from the three treaty powers, and thus those powers were bound upon principles of international good faith to maintain the situation thereby created until by common accord they had otherwise decided; and

Whereas, that being so, the military action in question undertaken by the British and American military authorities before the arrival of the instructions mentioned in the proclamation, and tending to overthrow the provisional government thereby established, was contrary to the aforesaid obligation and can not be justified on the plea neither of the invalidity ab initio of the said provisional government nor of its establishment under a species of force majeure;

Whereas with respect to the objection of the British and United States Governments to the refusal of the German consul to sign the proclamation proposed by the other consuls to be issued immediately after the chief justice had given his decision on the 31st of December, 1898, and their contention that, in determining the responsibility for the subsequent events, it should be taken into consideration that the attitude of the German consul was a direct violation of the provisions of the Berlin general act, it can not be considered to have been the duty of the German consul to take part in the issuing of said proclamation, and it has not been proved that with regard to said decision any steps were taken by him contrary to the general act, and` therefore no responsibility attaches for the attitude taken up by him in this respect; Whereas with respect to the contention of the British and United States Governments that, whether or not there was authority to insist by force on the acceptance of the provisions of the Berlin general act, the military action was not unwarranted, because it was necessary for the protection of lives and property which it was the

duty of the British and American officers to safeguard, and because the opening of fire on the 15th of March was necessitated by the Mataafan warriors making a rush on the British and the United States consulates and by a threatened attack by several war canoes on Mulinuu, where a detachment from the British and American ships was stationed, we have found nothing in the evidence before us to show that the general condition of affairs was such as to render the military action necessary for the protection of lives and property, and as to the said two attacks alleged to have taken place on the 15th of March it results from all the facts relative thereto that the rush was not, and never was meant to be, an attack on the consulates, but simply was directed against some fleeing women of the Malietoa party, that no attack was intended on Mulinuu by the canoes, which by the garrison there were seen putting out from the opposite shore of the Vaiusu bay and which were ordered by Mataafa to go along the coast to the west and, in fact, were going in that direction and not towards Mulinuu when the firing began, and that, on account of the state of the tide it was not even possible at the time to pass the bay in canoes; and

Whereas it is established not only that on the arrival of the Philadelphia on the 6th of March the Malietoans were completely defeated, and deported to distant places and deprived of their arms, and unable to offer any resistance whatever to the victorious Mataafans, but also in the last days before the beginning of the bombardment Mataafa was ordered away from Mulinuu by the United States admiral, and that the Malietoans were brought back there by the British and United States military authorities, that a considerable quantity of arms was returned to the Malietoans, which arms in the beginning of January, 1899, had been surrendered by them to the commander of the Porpoise, when, defeated by the Mataafans, they had taken refuge under the guns of that ship, that ammunition was distributed to the Malietoans from the reserve stock which, according to the arrangement in 1896 between the treaty powers, was to be kept for the use of the Samoan Government and served out to the natives only by the unanimous request of the three consuls, and that such distribution was made by the British and American authorities without the consent of the German consul; and

Whereas it ought to have been foreseen that the said actions on the part of the British and American authorities, which can not be considered to have been justified by any threatening attitude of the Mataafans, should exasperate these latter and greatly endanger the peace of the country and the situation created by the surrender of the Malietoans on the 2nd of January and by the establishment of the provisional government, and therefore the British and United States authorities ought to have abstained from such proceedings;

Whereas with respect to the stopping of the street traffic, the measures relative thereto were in themselves contrary, as far as Germans were concerned, to the provisions of the Berlin general act guaranteeing them the same rights of residence, trade, and personal protection as subjects and citizens of the two other powers, and as, at all events, those measures constituting only a detail of the military operations at the time, the question whether or not they were unwarranted under the circumstances depends on the same considerations as those which concern the military action in general;

Whereas the above considerations apply equally to all the claims before us, whether presented under the arbitration convention itself or under the subsequent arrangement;

For these reasons,

We are of opinion

That the military action in question, viz, the bringing back of the Malietoans and the distribution to them of arms and ammunition, the bombardment, the military operations on shore, and the stopping of the street traffic can not be considered as having been warranted;

And that, therefore, His Britannic Majesty's Government and the United States Government are responsible, under the convention of the 7th of November, 1899, for losses caused by said military action.

While reserving for a future decision the question as to the extent to which the two Governments, or each of them, may be considered responsible for such losses. In testimony whereof we have signed this present decision and have ordered our royal seal to be affixed hereunto. Done in triplicate at our royal palace at Stockholm on the fourteenth day of October, in the year of our Lord one thousand nine hundred and two.

OSCAR. [L. S.]

No. 1836.]

PASSPORT APPLICATION OF SCHABSEL REIF.

Mr. White to Mr. Hay.

EMBASSY OF THE UNITED STATES,
Berlin, January 27, 1902.

SIR: I have the honor to inform you that I refused to issue a new passport to one Schabsel Reif on the 23d instant. The applicant was born at Kellem, in Russia, in 1852, emigrated to the United States in 1884, and lived there for ten years, becoming naturalized in 1890. 1894 he returned to Europe and has since that time resided in Germany near the Russian frontier.

In

On July 28, 1896, he made application for a passport at the embassy through the consular agent at Koenigsberg, stating that he would return to the United States to live within "the next two years." On the 12th of August, after a good deal of correspondence, a passport was issued to him (No. 202), and he was warned that "if he did not return to the United States at the time sworn to in his application, no further passport would be issued to him from the embassy."

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In his present application it appears that he did not return to the United States within two years from that date, that he has not yet returned there, and that he now desires to remain for two years longer in Germany. Although given an opportunity to do so, he gives no reason for his failure to carry out his previously expressed intention or for his wishing to prolong his residence in Germany. I have therefore refused to issue a new passport to him.

I have, etc.,

AND. D. WHITE.

Mr. Hay to Mr. White.

No. 1299.]

DEPARTMENT OF STATE, Washington, February 15, 1902.

SIR: Your No. 1836, of the 27th ultimo, has been received. It rests on Mr. Schabsel Reif to explain satisfactorily his delay in carrying out his declared intention to return to the United States and to show the reasonable certainty of his present declaration to return. Until this is done your course in withholding a passport from him is approved.

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SIR: I have the honor to transmit herewith form of an application for a passport for Joseph Duff, which was received to-day from the United States consul at Mainz.

Consul Schumann writes, with regard to this case, that

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Mr. Duff was born in the city of New York, but ever since his youth has resided in Germany. Mr. Duff can not say when he will return to the United States, as at present he is employed as salesman by a firm at Darmstadt and would not care to return to the United States without a definite business engagement.

The embassy, in reply, has informed Mr. Schumann that in view of the fact that Mr. Duff was brought to Germany in 1870, before he was a year old, and that he has never since visited his native country and even now has no intention to go there to reside and perform the duties of citizenship, it does not feel at liberty to issue the desired passport to him, and that under the circumstances a passport could only be issued in case one should be necessary to enable Mr. Duff to go to the United States to live.

I am, etc.,

AND. D. WHITE.

[Inclosure.]

I, Joseph Duff, a native and loyal citizen of the United States, hereby apply to the embassy of the United States at Berlin for a passport for myself.

I solemnly swear that I was born at city of New York, in the State of New York, on or about the 31st day of March, 1870; that my father was a naturalized citizen of the United States; that I left the United States on the end of 1870, and am now permanently residing at Darmstadt, Germany; that I intend to return to the United States within with the purpose of residing and performing the duties of citizenship therein, and that I desire the passport for the purpose of traveling in France. I have never made application for passport before.

OATH OF ALLEGIANCE.

Further, I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same, and that I take this obligation freely, without any mental reservation or purpose of evasion. So help me God.

JOSEPH DUFF.

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SIR: Your No. 1865, of the 26th ultimo, has been received, and your course in refusing to issue to Joseph Duff a passport, under the circumstances set out in the dispatch, is approved.

I am, etc.,

JOHN HAY.

PASSPORT APPLICATION OF GUSTAV FRANK EICHBORN.

No. 2061.]

Mr. Jackson to Mr. Hay.

EMBASSY OF THE UNITED STATES,
Berlin, September 5, 1902.

SIR: I have the honor to report that I have to-day declined to issue a new passport to one Gustav Frank Eichborn. When Eichborn's old passport (No. 1735) was issued to him in January, 1900, he was warned, by direction of Ambassador White, that "should he not return to the United States as expected, and should apply for a new passport at the expiration of the one given him, it would be refused him." Eichborn is the American-born son of naturalized parents; he FR 1902, PT 1-29

was brought to Germany in 1891, when about 13 years old, and he has resided in Dresden ever since. In January, 1900, he declared that it was his intention to return to the United States within two years. Consul-General Cole now writes that he "has secured a situation with a business house in Dresden predicated on his ability to secure a passport, and while he promises to return to the United States within two years, he (Mr. Cole) rather questions the statement, because he made the same promise two years ago. Eichborn is still of the "military age," and he apparently merely wishes to make a convenience of his American nationality.

I have, etc.,

JOHN B. JACKSON.

Mr. Adee to Mr. White.

No. 1403.]

DEPARTMENT OF STATE,
Washington, September 20, 1902.

SIR: Mr. Jackson's No. 2061, of the 5th instant, has been received, and his refusal to issue to Gustav Frank Eichborn a passport, under the circumstances set forth in the dispatch, has the Department's approval.

I am, etc.,

ALVEY A. ADEE,

Acting Secretary.

EXPULSION OF PETER MIKOLAINIS.

Mr. White to Mr. Hay.

No. 1844.]

EMBASSY OF THE UNITED STATES,
Berlin, February 7, 1902.

SIR: I have the honor to inform you that on the 28th ultimo the embassy intervened in behalf of one Peter Mikolainis, to the end that he might be permitted to remain in Prussia until March 15 next, and that a note has to-day been received from the imperial foreign office in which it is stated that, to its regret, the Royal Prussian Government is not in a position to allow him to do so.

Kikolainis was born in Russia, in 1868, and emigrated to the United States in 1896. He was naturalized as a citizen in Luzerne County, Pa., on October 7, 1901, and he holds a passport issued to him by the Department of State last October. Accordingtohisown story, he left the United States in November and went to Tilsit, Prussia, near the Russian frontier, where he at once proceeded to establish himself in the bookselling business, his stock consisting of religious and scientific books printed in the Lithuanian language, imported from the United States. In January he was arrested, his books attached, and his premises searched, and an order served upon him to leave Prussian territory within forty-eight hours.

In its note the foreign office states that Mikolainis had lived in Tilsit from 1893 to 1896, and that during that time he was employed in a publishing house, and was engaged in the secret importation of forbidden books into Russia; that upon the nature of his business and his connection with certain agitators becoming known, he left Tilsit for the purpose of evading observation; that upon his return from America he engaged an apartment under an assumed name, resumed his

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